WHISTLEBLOWING LAWS – WHO DO THEY PROTECT?
A recent case in the Employment Appeal Tribunal (“EAT”) has confirmed that a member of an LLP is classed as a worker and is protected by the whistleblowing legislation.
Background
The legislation was introduced by the Public Interest Disclosure Act 1998 and is now set out in section 103A and part IVA of the Employment Rights Act 1996 (“ERA 1996”). If an employee is dismissed for making a “protected disclosure” the dismissal is automatically unfair. The disclosures qualifying for protection are set out in section 43B of the ERA 1996 and include a range of matters which must, in the reasonable belief of the worker, tend to show that one of following has occurred, is occurring, or is likely to occur:
- A criminal offence.
- Breach of any legal obligation.
- Miscarriage of justice.
- Danger to the health and safety of any individual.
- Damage to the environment.
- The deliberate concealing of information about any of the above.
Although the detriment often suffered by an individual who has made a protected disclosure is the fact that they have been dismissed, that is not the only detriment which might lead to a “whistleblowing” claim. Furthermore, it is not only employees who are protected; the protection extends to “workers”.
Who is a worker?
A worker is defined under section 230(3) of the ERA 1996 as
“an individual who has entered into, or works under, (or, where the employment has ceased, worked under):
- A contract of employment.
- Any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”
This second part is sometimes referred to as the limb (b) worker test, and it was this part which was recently considered by the EAT in the recent case of Van Winkelhof –v- Clyde and Co LLP.
The Employment Tribunal had rejected the Claimant’s complaint on the grounds that she was a member of an LLP. The EAT overturned that decision and determined that an Employment Tribunal does have jurisdiction to consider the Claimant’s complaint of detriment for having made a protected disclosure. The EAT stated that the formulation of the statutory requirements under section 230 (3)(b) for a worker were:
- That there must be a contract;
- Under the contract the worker must undertake to do or perform work or services personally.
- The work or services are to be done or performed for another party to the contract, and
- The other party must not be a client or customer of a professional or business undertaking carried on by the putative worker.
As a member of the LLP the Claimant had a contract with the LLP under which she was required to perform work or services personally for the firm. It was clear that the firm was not her client or customer. Therefore the EAT determined that the Claimant was a worker within the meaning of the limb (b) worker test and should be allowed to pursue her claim.